20000914 TZHC Dar es Salaam 1

IN TrL"S HIGH COURT OF TANZANIA DAR ES SALAAf'i DISTRICT REGISTRY S1_ DAR_ ES SAL_Af:ill. CIVIL CASE- N0.99 OF 1998 ATTORNEY GENER4L ••••••• :•• PLAINTIFF VERSUS AFRICAN TROPHY HUNTING TANZANIA LIMITED ··········••ooo••··DEFENDANT R TJ L I N G BUBESHir J: On 11/11/99 ► this court rejected the plaintiff's prayer to the extension of time to file his defendant to proceed exparte. The plaintiff filed an application for review o:f my order. JV1r. Chidowu :for the Attorney General submitted that this court acted in error for :failure to comply with th2 Government :Proceedings (Procedure) Rules of procedure as provided under Government Notice 376/1968, where a party seeking for such exparte proof may apply in writing for leave to adduce exparte proof of his claim/counter claim. He has added that the defendant was supposed to apply in writing :for such leave and the court had to :fix a date for the he2.r:i_ng of the application, with the Attorney General appearing. He stated. that the application and r . . otice. to the Attorney General are mandatory. That under the provisions •Of sub rule 4 of Rule l4 of Order VIII, the Attorney-General is entitled to be given an opportunity of being heard as to why he failed to file his written staterr,(-mt . o:f defence. He has further- statcc: that as chis cour-'.-: !-1as fc=~iled to comply with the above prc,visions, -tJL~;:; error be rectified by way of review .. Secondly that thie court erred not to abide by the mediatJo:;_, process_ fi,rst before ordering £or the exparte proof nro~ APcl.i...UIIS 2 In his reply, Mr. Nyange learned, c.ounsel appearing . ; for the Defendant/respondent objected to the format of· the review filed, in that neither a copy of the ruling of order was attached to the application. Mr. Nyange c cited the case of C~y~l Application No.30 of 1999 - Chiku Hussein Lugon2'.o v~_Br21mnidas F S Paulo; o where the Court of Appeal held, inter alia, that a copy of the ruling or order sought to be reviewed ought to be attachede He prayed. for this court to· st:~i;:;k out the memorandum of review. Further and without prejudice to the objection raised, Mr. Nyange submitted that the requirement to apply for leave was not mandatory, and that the same issues had been raised before during the hearing of the preliminary objections, and where this court fcund the reasons advanced by the Attorney General for failure to file -the written statement of' defence- to be insufficient. Mr. Nya.1:-ge was of the firm view that no new ground has been adduced to warrant a review. While I find both submissions to be equally valid~ i"i.r. Nyange did not touch on the failure by this court to order for medi-at:iort._ before ordering exparte proofe On this matter I am at one with the .... submissions by Mr. Chidowu. The process of mediationi under Government Notice 244/94 .is mandatory to cases of coun~e~ claim. To thac extent parties are ordered to abide by that process before 'embarking on,. -'Jrial to that extent the application for review is allowed~ That exparte proof order is, accordihgiy set aside, Delivered before ¼(_~~[!3,i £ A. Go BUBESHI 'f~~~( Mr. Komba for Plaintiff J;"UDOE, and Ringia for the i4/9/2000 Defendant. ,r ------ _____- --------··- - ---·. •,_, -- - _...... _ - --